United States District Court, E.D. Wisconsin
Marilyn Smith, et al.
United States of America, et al.
Scheduling Conference Oral Ruling on the Motion to Dismiss
Martin - Attorney for the plaintiffs
Charles Guadagnino - Attorney for the defendants
COURT MINUTES AND ORDER
PAMELA PEPPER United States District Judge
court noted that the parties had filed a joint Rule 26(f)
plan, which the court had reviewed. The court stated,
however, that the court first would address the partial
motion to dismiss, dkt. no. 7, which the parties had fully
motion asked the court to dismiss the Department of Veterans
Affairs as a defendant, because the United States was the
only proper defendant in an action under the Federal Tort
Claims Act. The plaintiff had agreed, so the court granted
that portion of the motion, and dismissed the Department of
Veterans Affairs as a defendant.
motion also asked the court to dismiss Count Two of the
complaint (negligent hiring, training and supervising claim).
The defendant argued that the plaintiffs had failed to
exhaust their remedies on this claim, by failing to present
the claim to the Department of Veterans Affairs. The
plaintiffs had responded that they had presented the
claim; they pointed to language in the supplemental documents
they had filed in support of the estate plaintiff's Form
considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court must construe the complaint in
the light most favorable to the plaintiff, accepting as true
all well-pleaded facts alleged and drawing all permissible
inferences in her favor. Fortres Grand Corp. v. Warner
Bros. Entm't Inc., 763 F.3d 696, 700 (7th Cir. 2014)
(citation omitted). To survive a motion to dismiss, a
plaintiff must allege “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). The complaint allegations “must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citation
omitted). While the court must draw all reasonable inferences
and facts in favor of the nonmovant, it “need not
accept as true legal conclusions or threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements.” Alam v. Miller Brewing
Co., 709 F.3d 662, 666 (7th Cir.2013) (quotation and
the FTCA, the United States is responsible for the tortious
conduct of its employees “in the same manner and to the
same extent as a private individual under like
circumstances.” See 28 U.S.C. § 2674. The FTCA
requires the exhaustion of administrative remedies prior to
suing the federal government in tort. See 28 U.S.C. §
2675(a); see also Frey v. EPA, 270 F.3d 1129, 1135
(7th Cir. 2001); Kanar v. United States, 118 F.3d
527, 528 (7th Cir. 1997). A claim is exhausted at the
administrative level when the “pertinent facts”
of the claim have been pled, giving the administrative agency
“sufficient notice” to investigate the claim, and
the agency either denies the claim in writing or fails to
make a final disposition within six months after its filing.
28 U.S.C. § 2675(a). The exhaustion requirement exists
because Congress wanted agencies to have an opportunity to
settle disputes before defending against litigation in court.
See McNeil v. United States, 508 U.S. 106, 112 &
n. 7, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
term “claim” is not defined in the statute, but
the corresponding regulation states that a proper
administrative claim under the FTCA contains four elements:
(1) notification of the incident; (2) a demand for money
damages in a sum certain; (3) the title or legal capacity of
the person signing; and (4) evidence of the person's
authority to represent the claimant. 28 C.F.R. §
14.2(a); see also Kanar v. United States, 118 F.3d
527, 528 (7th Cir.1997). The Seventh Circuit does not require
plaintiffs to comply with “every jot and tittle of the
regulation, ” as long as the proper agency had the
opportunity to settle the claim for money damages before the
point of suit. Smoke Shop, LLC v. U.S., 761 F.3d
779, 787 (7th Cir. 2014). As Judge Flaum explained,
“[T]he underlying purpose of our approach to §
2675(a)'s requirement-like the courts that eschew the
regulation-is to ensure that the claimant does not hinder the
settlement process that a claim is supposed to
Wisconsin law, negligent hiring, supervision or retention is
a different and distinct claim from a claim of general
negligence. Scholz v. United States, Case No.
16-cv-1052-WED, 2017 WL 37561 at *3 (E.D. Wis. January 25,
2017), citing Hansen v. Texas Roadhouse, Inc., 345
Wis.2d 669, 686 (Wis. 2013)).
court compared the language of Count Two of the complaint
with the supplement to Form 95 filed by the estate defendant.
The supplement to the Estate's Form 95 (incorporated by
reference into Smith's form) included the following
The claimant, Gary Smith, was a patient of clement Zablocki
VA Medical Center at all times material hereto, including
from September 19, 2014 to September 23, 2015, Clement
Zablocki Medical Center, its agents, servants and employees,
had a duty to provide care to the claimant, Gary Smith, at
all times material hereto, including from September 19, 2014
to September 23, 2015, which duty required Clement Zablocki
VA Medical Center to use the degree of care, skill and
judgment usually exercised by reasonable hospitals in the
same or similar circumstances.
Clement Zablocki VA Medical Center was negligent in its care
and treatment of Gary Smith at all times material hereto,
including, but not limited to, October 7, 2014, October 15,
2014, October 21, 2014 and October 22, 2014 in that it failed
to possess/exercise that degree of care, skill and judgment
usually exercised by a reasonable hospital, its agent,
servants and employees, in that it, amongst other things,
negligently failed to assess, diagnose, plan, implement
interventions and evaluate said interventions relative to Mr.
Smith's fall precautions; negligently failed to establish
a proper care plan for Mr. Smith's fall ...